July 15, 2011

Via Email

Mr. Brian Shrager Energy Strategies Group Sector Policies and Programs Division Office of Air Quality Planni ng and Standards (D243-01) U.S. Environmental Protection Agency Research Triangle Park, NC 27711, shrager.brian@epa.gov

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Ms. Toni Jones Fuels and Incineration Group Sector Policies and Programs Division Office of Air Quality Planni ng and Standards (E143-03) U.S. Environmental Protection Agency Research Triangle Park, NC 27711 jones.toni@epa.gov

.

RE: Comments of the Auto Industry Foru m on EPA’s Request for Additional Information Regarding Issues to Be R econsidered for Industrial, Commercial,

and Institutional Boilers and Process Heaters and Commercial and Industrial Solid Waste Incineration Units Regulated under Section 112 and 129 of the Clean Air Act, 76 Fed. Reg. 28662 (May 18, 2011)

Dear Mr. Shrager and Ms. Jones:

The Auto Industry Forum (AIF) is pleased to respond to the Envi ronmental Protection Agency’s request to provide additional informa tion regarding the issues to be reconsidered

under the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial Commercial, and Institu tional Boilers and Process Heaters , published at 75 Fed. Reg. 15,608 (Mar. 21, 2011) (the “Boiler MACT”)and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sour ces: Commercial and Industrial Solid Waste Incineration Units; Final Rule , published at 76 Fed. Reg. 15,704 (Mar. 21, 2011) Shannon S. Broome
202.625.3715

510.287.8161Mr. Brian Shrager

Ms. Toni Jones July 15, 2011 Page 2

(“CISWI Rule”). The AIF is a coalition of automobile manufacturing companies whose members are affected by both the Boiler MACT and the CISWI rule. The AIF has filed petitions for reconsideration with the Administrator and has also filed petitions for review in the United States Court of Appeals for the D.C. Ci rcuit of both of these ru les. In addition, the AIF has filed a petition for review of the Identification of Non-Hazardous Secondary Materials That Are Solid Waste; Final Rule , published at 76 Fed. Reg. 15,456 (Mar. 21, 2011) (“NHSM Rule”) and a corresponding pet ition for administrative stay with the

Administrator. 1

As explained in detail in the attached petitions for r econsideration, the AIF requests that EPA reconsider the following aspects of the Boiler MACT and CISWI Rule and solicit comment on these issues in its proposed rec onsideration action sche duled for this fall.

I. Boiler MACT Reconsideration

1. The treatment of landfill gas (“LFG”): While LFG has been characterized by EPA as an “other process gas” in the Gas 2 category, it should qualify automatically for regulatory treatm ent under the Gas 1 category. EPA’s provision to allow facilities to dem onstrate that a Gas 2 unit deserves regulatory treatment under the Gas 1 category (the “demonstration mechanism”) is unreasonable, arbitrary, and capricious, and actually creates more stringent requirements for LFG than must be met by substances EPA has automatically deemed to qualify for Gas 1 regulatory treatment. In particular, the requirements to meet 40 mm/m3 me rcury, and 4 ppm hydrogen sulfide are

not reasonable. We have attached to these comments a study entitled Boiler MACT Fuel Classification Review for Landfill Gas, which was prepared by CH2MHill. This study shows that LFG is comparable to both natural gas and refinery gas and therefore should be clas sified as Gas 1. Moreover, EPA failed to provide adequate notice and opport unity for comment on the process and

thresholds that would allow a unit to qualify for the Gas 1 category and therefore, even if EPA does not automatically include all LFG in the Gas 1 category, it is obligated to take comment on and reconsider its approach for allowing other gases to qualify as Gas 1 to ensure that any such process is workable and appropriate.

2. Applicability and requ irements for boilers and process heaters below 10 MMBTU/hr heat input: Boilers and process heater s with heat input capacities up to 10 MMBTU/hr

, particularly natural gas-fired units, should be exempted

from the final work practice standard and should not be subject to unworkable

and burdensome biannual tune up requirements. Consistent with the need for an exemption for boilers and process heaters up to 10 MMBTU/hr, EPA’s

1 The AIF also filed a petition for reconsideration and a petition for review of the pr edecessor CISWI Rule which was issued December 1, 2000, in light of the implica tions of the NHSM rule on the original CISWI rule applicability.Mr. Brian Shrager

Ms. Toni Jones July 15, 2011 Page 3

imposition of bi-annual tune-up requirements on natural gas-fired hot water heaters with capacity greater than 120 U.S. gallons should be eliminated given the extreme burdens imposed and the lack of environmental benefits.

3. Notification requirements for alternative fuel use: The requirement to notify

EPA within 48 hours of alternative fuel use during natural gas curtailment should be eliminated and any notifica tion required should be modified to comport with reporting deadlines under Title V.

4. Energy assessment requirement: The energy assessment requirement should be eliminated or curtailed to apply only to the boiler or pr ocess heater, not to the broader range of processes at a plant.

II. CISWI Rule Reconsideration

1. Treatment of thermal sand recycling: EPA should clarify that foundry sand being recycled is not a solid waste a nd that thermal sand reclamation (“TSR”)

units are not considered solid wast e incineration units subject to the requirements in the CISWI Rule (either 2000 or 2011).

2. Treatment of paint solids: EPA should adopt an exclusion from the CISWI Rule for paint solids collected from automobile assembly plants that are thermally treated.

3. Coating operation control devices: Consistent with a May 13, 2011, letter from Suzanne Rudzinski, Director of EPA’s Office of Resource Conservation and Recovery, to Mr. Timothy Hunt, Am erican Forest and Paper Association, EPA clarify and confirm in regulatory language that the CISWI Rule does not apply to the burning of gaseous materials – e.g., in fume incinerators which may include regenerative thermal oxi dizers and other control devices -- associated with coating operations.

We are pleased that the Agency is moving e xpeditiously to address the concerns raised in administrative petitions and in the legal chal lenges that have been filed. This will ensure that resources are not spent litig ating issues that the Agency al ready intends to address. In addition, we are pleased that EPA has stayed the Boiler MACT and CISWI Rule in order to allow this reconsideration process to proceed in an orderly fashion.

Please contact me with any questions regarding this submittal at 510-287-8161 or 202-

625-3517 or shannon.broome@kattenlaw.com . The Auto Industry Forum looks forward to working with the Agency to address the issues presented by these rules in an expeditious and cooperative manner.

Sincerely,Mr. Brian Shrager

Ms. Toni Jones July 15, 2011 Page 4

Shannon S. Broome

# Report



# Boiler MACT Fuel Classification

Review for Landfill Gas

Prepared for 

# Waste Management, Inc.

July 2011

# Copyrighted page(s) removed. Copyrighted material is not available in Regulations.gov since it may not be reproduced without consent of the copyright holder.

Removed pages can be viewed at the USEPA Docket Center, Public Reading Room.

Address: 1301 Constitution Ave, NW
Room 3334 Washington, DC 20004

Telephone: 202-566-1744

Email: docket-customerservice@epa.govATTACHMENT 

## Adapting Boilers to Utilize Landfill Gas: An Environmentally and Economically Beneficial Opportunity

– EPA Landfill Methane Outreach Program ( December 2009 )1 Adapting Boilers to Utilize Landfill Gas: An Environmentally and Economically Beneficial Opportunity Utilization of landfill gas (LFG) in place of a conventional fuel such as natural gas, fuel oil, or coal in boilers is an established practice with a track record of more than 25 years of success. In the United States, more than 60 organizations have switched to the use of LFG
in their industrial, commercial, or institutional boilers, with more than 70 boilers operating with LFG, either alone or co-fired with other fuels. Boilers firing LFG range in size from

2 to more than 150 million British Thermal Units per hour (MMBtu/hr). Companies using LFG are saving money while protecting

the environment. General Motors fires LFG in boilers at four of their manufacturing and assembly plants and reports that they have realized energy cost savings of about $500,000 per year at each of the four plants.

This fact sheet discusses the technical and engineering issues associated with using LFG in boilers designed to burn other fuels. The equipment and operational changes are relatively simple and use proven technologies, and dozens of firms can engineer and implement a conversion project.



### Comparison of Landfill Gas and Natural Gas

Like natural gas, LFG’s heating value is derived largely from methane, but unlike natural gas, LFG is comprised about 50 percent by volume of non-combustible gas, mostly carbon dioxide (CO 2 ). LFG is classified as a “medium Btu gas” with a heating value of about 500 Btu per cubic foot, about half that of natural gas. Therefore, the volume of LFG that must be handled by the fuel train and burner is twice that of natural gas. This means that modifications to the fuel train and burner are usually required to accommodate the higher overall gas flowrate for an equivalent natural gas heating value. The increased gas flow, however, does not have an appreciable effect on the design and operation of boiler components downstream of the burner. The added volume of non-combustible (inert) gas in LFG is equivalent to the inert gas entering a boiler when about six percent of the flue gas is recirculated to the boiler. Flue Gas Recirculation (FGR) is a widely applied technique for reducing nitrogen oxide (NO x) emissions from natural gas-fired industrial and commercial boilers, and boilers can typically operate at recirculation rates of 20-25 percent without adversely affecting boiler heat transfer and efficiency. This comparison illustrates that the increased flow of LFG as compared to natural gas will not adversely affect boiler operation, although the burner, controls, and fuel train will require some modifications. 

# Adapting Boilers to Utilize Landfill Gas: **An Environmentally and Economically Beneficial Opportunity** 

Mallinckrodt, Inc. Raleigh, NC December 20092 Adapting Boilers to Utilize Landfill Gas: An Environmentally and Economically Beneficial Opportunity 

### Burner, Control, and Fuel

Train Modifications

The equipment for retrofitting a boiler to burn LFG is commercially available, proven, and not overly complex. The decisions that must be made during engineering and design are, however, site-specific and may be somewhat involved. For example, some installations have retained the original burner but modified it for LFG (e.g., by installing separate LFG fuel train and gas spuds) while maintaining the existing natural gas fuel train and gas ring to permit LFG/natural gas co-firing. Other installations have replaced the entire burner, controls, and fuel train with a dual-fuel burner and dual-fuel trains specifically designed to handle medium Btu gas. In general, the decision to furnish all new equipment is made based on the owner’s preference or because the existing burner and controls are nearing the end of their useful lives. Additional analysis may be required to determine the amount of LFG compression that is provided versus the modifications needed for the burner and gas train.

Because LFG is typically a wet gas often containing trace corrosive compounds, the fuel train and possibly some burner “internals” should be replaced with corrosion-resistant materials. Stainless steel has typically been the material selected.

The controls associated with fuel flow and combustion air flow need to be engineered to cope with the variable heat content of LFG. The complexity of the burner management system will depend upon whether the boiler is to be co-fired with natural gas or oil and whether the boiler is to be co-fired at all times or if there will be times when it will be fired with LFG only. Today’s modern controls, fast-responding oxygen analyzers, and responsive flame sensors make it possible to fire LFG with the same level of safety that is characteristic of current natural gas systems.



### Boiler Deposits and Boiler Cleaning

In recent years, a family of organo-silicon compounds, known as siloxanes, commonly found in detergents, shampoos, deodorants, and cosmetics, have gradually found their way into the solid waste stream and into LFG. Their quantity in LFG is small and varies with the age of the landfilled material. When LFG is burned, the siloxanes are oxidized to silicon oxide—the primary chemical compound in sand. After firing boilers for an extended period with LFG, operators report a thin coating of white powder, described as similar to talcum powder, on some of the boiler tubes and substantial accumulations of the white powder on portions of the boiler floor. Where the material collects and how much of it accumulates is likely to be a function of the velocity patterns in the boiler and the siloxane concentrations in the LFG. One firetube boiler operator reported no deposits at all, probably due to the high flue gas velocity that is characteristic of the firetube boiler configuration. Mallinckrodt, Inc. Raleigh, NC3 Adapting Boilers to Utilize Landfill Gas: An Environmentally and Economically Beneficial Opportunity Operators’ experiences to date indicate that annual cleaning is sufficient to avoid operational problems related to silicon oxide accumulation. More frequent cleaning may be necessary as future installations encounter higher LFG siloxane concentrations or when low gas velocities exist in the boiler, either because of boiler design or continuous operation well below full capacity. In all cases, the silicon oxide powder is easily removed from surfaces by brushing or water washing.



### Other Considerations

In designing and assessing the economic feasibility of projects utilizing LFG in boilers, several factors in addition to the boiler retrofit must be considered. For example, the quantity of LFG available must be considered and compared to the facility’s steam needs and boiler capacities. Factors such as pipeline right-of-way issues and the distance between the landfill and the boiler will influence costs and the price at which LFG can be delivered and sold to the boiler owner. Because LFG is generally saturated with moisture, gas treatment is needed before the LFG is introduced into the pipeline and subsequently the boiler, to avoid condensation and corrosion. Additionally, condensate knock-outs along the pipeline are necessary as condensation in the main pipeline can cause blockages. Fortunately, the level of LFG clean-up required for boiler use is minimal, with only large particle and moisture removal needed. Other compounds in LFG, such as siloxanes, do not damage boilers or impair their function. Generally, LFG clean-up and compression systems are located at the landfill and are often installed by a developer rather than by the boiler owner. LFG compression provided at the landfill must be sufficient to compensate for pipeline pressure losses and provide sufficient pressure at the boiler to permit proper function of the fuel controls and burner. Proper attention to burner selection or burner modification for low-pressure operation can minimize the LFG compression costs.



### Is My Boiler a Candidate for Landfill Gas Retrofit?

Virtually any commercial or industrial boiler can be retrofitted to fire LFG, either alone or co-fired with natural gas or fuel oil. The firing profile is a primary consideration, regardless of the boiler type, since the fuel cost savings associated with LFG must offset the costs of the LFG recovery (if a LFG collection system is not yet in place), the gas clean-up equipment, and the pipeline. Operation at substantial load on a 24-hour/7 day-per-week basis or something approaching continual operation is generally important to the economic viability of a potential project.

Both the smaller, lower-pressure firetube package boilers and larger, higher-pressure watertube package boilers are already in operation with LFG. Older field-erected brick set boilers have also been retrofitted for LFG fuel. Many major boiler manufacturers, such as Cleaver Brooks, Babcock & Mallinckrodt, Inc. Raleigh, NC4 Adapting Boilers to Utilize Landfill Gas: An Environmentally and Economically Beneficial Opportunity Wilcox, Nebraska, and ABCO, are represented in the population of boilers that have been converted for LFG service. Similarly, leading burner manufacturers (e.g., Todd, North American, and Coen) have provided specially designed LFG burners or have experience modifying standard natural gas burners for

LFG service.



### Examples of Successful Boiler LFG Energy Projects

NASA Goddard Space Flight Center . In early 2003, NASA’s Goddard Space Flight Center in Greenbelt, Maryland, began firing LFG in two Nebraska watertube boilers, each capable of producing 40,000 pounds per hour of steam. The gas is piped approximately five miles from the Sandy Hill Landfill to the boiler house at Goddard. NASA modified the burners and controls to co-fire LFG, natural gas, and oil; however, LFG provides the total firing requirement for approximately nine months of the year. Later, a third boiler also began utilizing LFG. NASA estimates an annual savings of more than $350,000. Current NASA plans call for LFG use to continue for at least 10 years, with a possible extension to 20 years. LMOP Partners Toro Energy and CPL Systems developed and implemented the project.

Cone Mills White Oak Plant . The LFG retrofit project at textile manufacturer Cone Mills’ plant in Greensboro, North Carolina involved a very old (circa 1927) field-erected brick set boiler. In this instance, the developers chose to install two new, multi-fuel burners supplied by Coen Company, Inc. Full operation began in early 1997, with a steaming capacity of 30,000 pounds per hour from the LFG fuel. Additional steam is provided as needed by co-firing with natural gas or fuel oil. The gas is supplied to the Cone Mills plant via a three-mile pipeline originating at Greensboro’s White Street Landfill. The project is a partnership between the City of Greensboro, Duke Solutions (now part of Ameresco, Inc.), and Cone Mills.

Information about additional projects can be found at the project profiles section of the LMOP Web site at www.epa.gov/lmop/projects-candidates/profiles.html. The photographs in this document depict a boiler retrofitted to burn LFG, courtesy of Mallinckrodt, Inc. in Raleigh,

North Carolina.



### Where Can I Obtain Further Information?

LMOP is a voluntary program that helps landfill owners, project developers, and communities develop LFG energy projects. LMOP offers technical support that includes finding a landfill, estimating gas generation, analyzing project economics, and providing other tools to help landfill owners and operators realize their facility’s LFG use potential. For more information, visit the LMOP Web site at www.epa.gov/lmop/. Mallinckrodt, Inc. Raleigh, NCMay 20, 2011

VIA FACSIMILE - ELECTRONIC MAIL -

CERTIFIED MAIL/RETURN RECEIPT REQUESTED

The Honorable Lisa P. Jackson Administrator (M/C: 1101A) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 jackson.lisa@epa.gov

Fax No: 202-501-1450

The Honorable Gina McCarthy Assistant Administrator (M/C: 6101A)

Office of Air and Radiation U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 mccarthy.gina@epa.gov

Fax No: 202-501-0986

Re: Auto Industry Forum Petition fo r Reconsideration and Support for Stay

Mesdames Jackson and McCarthy:

The Auto Industry Forum (“AIF”) hereby submits the attached petition for reconsideration and support for stay of the Environmental Protection Agency’s National Emission Standards for Hazar dous Air Pollutants for Major Sources: Industrial Commercial, and Instituti onal Boilers and Process Heaters , published at 75 Fed. Reg. 15,608 (Mar. 21, 2011) (t he “Boiler MACT”).

Please feel free to contact me at 510 -985-1710 with any questions regarding this petition.

Sincerely,

/s/ Shannon S. Broome

Shannon S. Broome Counsel to the Auto Industry Forum

AttachmentBEFORE THE ADMINISTRATOR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

) In re: National Emission Standards ) for Hazardous Air Pollutants for Major ) Sources: Industrial, Commercial, and )
Institutional Boilers and Process ) Docket ID. EPA–HQ–OAR–2002-0058 Heaters, 76 Fed. Reg. 15,608 ) (Mar. 21, 2011) ) )

PETITION OF THE AUTO INDUSTRY FORUM FOR RECONSIDERATION
AND SUPPORT FOR ADMINISTRATIVE STAY

Pursuant to section 307(d)(7)(B) of t he Clean Air Act (“CAA”), 42 U.S.C. § 7607(d)(7)(B), and section 705 of the Admini strative Procedure Act (“APA”), 5 U.S.C. § 705, the Auto Industry Forum (“AIF”) hereby petitions the Administrator of the U.S. Environmental Protection Agency (“EPA” or “A gency”) to reconsider portions of EPA’s
final rule entitled National Emission Standard s for Hazardous Air Pollutants for Major Sources: Industrial, Commercia l, and Institutional Boilers and Process Heaters, 76 Fed. Reg. 15,608 (Mar. 21, 2011) (Docket No. EPA–HQ–OAR–2002–0058) (the “Boiler MACT” or “Rule”). The Boiler MACT impos es emission limits based on the performance
of the maximum achievable control tec hnology (“MACT”) for hazardous air pollutants (“HAPs”) generated by boiler units that ar e also major stationary sources. See 76 Fed. Reg. at 15,609-10.

The AIF supports the stay of the Boil er MACT that EPA released on May 16, 2011 and is attached to this petition. The AIF notes that EPA i ndicated in the prepublication version of the Federal Register notice regarding the state that the Agency will “issue a notice of proposed re consideration of each rule that identifies the specific
issue or issues raised in the petitions on which the Agency is granting reconsideration.”
EPA further states that it “ understands that members of t he public may wish to submit
additional data and information to inform the EPA’s proposed recons ideration, and the Agency will consider any additional information submitted in time to do so.” This petition addresses several specific issues that EPA should reconsider: 1

Specifically, and as discussed below, t he AIF seeks reconsideration regarding the following issues:

1. Landfill gas (“LFG”) has been improperly characterized by EPA as an “other process gas” in the Gas 2 category and should automatic ally qualify for

1 The AIF also supports reconsideration of several issues raised in other petitions for reconsideration filed by industry groups and intends to participate fully in the reconsideration process. The AIF further reserves the right to supp lement this petition for reconsideration.2 regulatory treatment under the Gas 1 catego ry. EPA’s provision to allow facilities
to demonstrate that a Gas 2 unit deserves regulatory treatment under the Gas 1 category (the “demonstration mechani sm”) is unreasonable, arbitrary and capricious, and actually more stringent t han substances automat ically deemed to qualify for Gas 1 regulatory treatment, su ch as 40 mm/m3 mercury, and 4 ppm hydrogen sulfide. Moreover, EPA fail ed to provide adequate notice and opportunity for comment on the process and th resholds that woul d allow a unit to qualify for the Gas 1 category.

2. Boilers and process heat ers with heat input capacities up to 10 MMBTU/hr

, particularly natural gas-fired units, s hould be exempted from the final work practice standard and should not be s ubject to unworkable and burdensome biannual tune up requirements. Consistent with the need for an exemption for boilers and process heaters up to 10 MMBTU/hr, EPA’s impo sition of bi-annual tune-up requirements on natural gas-fired hot water heat ers with capacity greater than 120 U.S. gallons s hould be eliminated given th e extreme burdens imposed
and the lack of envir onmental benefits.

3. The requirement to notif y EPA within 48 hours of alte rnative fuel use during natural gas curtailment should be elimi nated and any notificati on required should be modified to comport with r eporting deadlines under Title V.

4. The energy assessment requi rement should be eliminated.

BACKGROUND

The Boiler MACT imposes, pursuant to Section 112 of the CAA, emission standards for HAPs for new and existing indust rial, commercial, and in stitutional boilers and process heaters located at major sources. See 76 Fed. Reg. at 15,608-10; 42 U.S.C. § 7412(d). EPA proposed the new rule in response to a June 19, 2007, D.C. Circuit decision regarding the national emission standards fo r hazardous air pollutants (“NESHAPs”) for those sources. See National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; Proposed Rule, 75 Fed. Reg. 32,006 (June 4, 2010).

GROUNDS FOR RECONSIDERATION AND
REQUEST FOR STAY

I. STATUTORY PROVISIONS GO VERNING RECONSIDERATION

Under section 307(d)(7)(B) of the CAA, th e Administrator is required to convene a proceeding to reconsider a final rule upon a demonstration that it was impracticable to raise a particular objection to the rule duri ng the period for public comment (but within the time specified for judicial review) if the objection is of central relevance to the
outcome of the rule. 42 U. S.C. § 7607(d)(7)(B). These circumstances are present
here.3 On the date on which EPA issued the fi nal Boiler MACT, t he Agency agreed to reconsider portions of the Boiler MACT along with several others related final rules.
See National Emission Standards for Hazardous Air Po llutants; Notice of Reconsideration, 76 Fed. Reg. 15,266 (Mar. 21, 2011). EPA’s Notice of Reconsideration stated that the Agency “is in the process of developing a proposed
reconsideration notice that identifies the s pecific elements of the rules for which we believe further public comment is appropriate and any provisions that we propose to modify after more fully evaluating the data and comments already received.” Id. at 15,267. EPA recognized that “c ertain issues of central re levance to these rules arose after the period for public comment or may have been impracticable to comment upon,”
and “that reconsideration is a ppropriate under section 307(d)(7 )(B) of the Clean Air Act.”

Id.

One such issue is EPA’s determination to allow facilities to qualify their boilers using LFG gas for regulatory treatment under the Gas 1 category, provided those Gas 2 units can satisfy severe emission limits not normally applicable to other Gas 1 units. This demonstration mechanism was not pr operly subject to notice and comment. Because EPA has gone beyond its authority, including by fail ing to give the public a meaningful opportunity to comment, it must in itiate reconsideration on this issue. Of equal relevance to the Rule’s outcome are EPA ’s failure to exempt boilers with heat input capacities of less than 10 MMBTU/hr, parti cularly those fired with natural gas, from the work practice standard an d the Agency’s decision to impose unworkable bi-annual tune up requirements. Moreover, EPA is i nappropriately requiring notification of alternative fuel use during nat ural gas curtailment within 48 hours of the declaration of curtailment. Accordingly, EPA must reconsider these provisions in its the final Boiler
MACT. Because members of the AIF wil l experience imminent harm from these provisions, the Administrator should grant the AI F’s petition to stay the effective date of applicability of thes e requirements.

II. BASIS FOR RECONSIDERATION OF THE FINAL RULE

A. EPA has – arbitrarily and withou t providing adequate opportunity for the public to comment – subjected LFG-fired units to the unattainable Gas 2 category’s emi ssion limits, and the Agency’s newly proposed demonstration mechanism to allow LFG facilities to qualify for Gas 1 treatment offers no relief.

In the final Boiler MACT, EPA defines “gaseous fuel” to include LFG and defines the category of units designed to burn Gas 1 to exclude LFG. See 76 Fed. Reg. at 15,684, 15,686 (40 C.F.R. § 63.7575). Accordingly, any bo iler or process heater firing any percentage of heat input from LFG qualif ies as a unit designed to burn Gas 2, thereby subjecting such a source to the la tter category’s stringen t emission limits. See
id. at 15,688-91.

EPA includes a new demonstration mechan ism in the final Rule, through which operators of Gas 2 sources can demonstrate to EPA that they should instead be subject
to the Gas 2 emission limits. But in light of test results on emi ssions levels from LFG-4 fired units, which can vary depending on the ty pes and quantities of wa stes present in a particular landfill, the new demonstration mechanism’s em ission standards for Gas 2 sources are not achievable by LFG-fired units . Even more, EPA did not allow the public adequate notice and opportunity to comment on EPA’s new mechanism. Unless EPA reconsiders the regulatory scheme presented in the Boiler MACT, the Agency will likely effect the presumably unintend ed result of discouraging the use of LFG, a renewable fuel, as an alternative to natural gas and coal . Landfills would instead return to wasting LFG by flaring it. Thus, EPA should amend it s regulations to allow LFG-fired units to automatically qualify for regul atory treatment under the standar ds for units designed to
burn Gas 1.

1. EPA’s requirement th at boilers utilizing LFG meet the emission limits of the Gas 2 category is not feasible, a nd the Agency’s proposed demonstration mechanism is not a viable solution.

Those AIF members with boilers utilizing LFG anticipate that they will not be able
to meet the Gas 2 cat egory’s emission limits ( e.g. , CO), particularly for units permitted and designed to minimize emissions of NO
x (for ozone attainment). Those members also do not expect to be able to obtain Ga s 1 classification through EPA’s new demonstration mechanism, in part due to t he limited LFG constituent data available from a given landfill. The AIF cannot assure the Agency that all em ission limits can be achieved even with the application of emi ssions control technology. Indeed, EPA’s record regarding its determination of the em ission limits for dioxin, furans, and mercury potentially emitted by boilers utilizing LFG is inadequate and not sufficient to support the promulgated standard under Sect ion 112(d). AIF cannot foresee whether compliance with the Gas 2 category’s limits for those pollu tants is achievable. It is questionable, at best, whether the CO limits in the Boiler MACT (9 ppmv for existing units and 3 ppmv corrected to 3% oxygen for new/reconstructed un its) are achievable, particularly on an ongoing basis. See 76 Fed. Reg. at 15,689 & 15,691.

Notwithstanding the comments that EPA received alerting it to the feasibility of LFG-fired units achieving thos e emission limits, the Agency has declined to recategorize LFG-fired units as Gas 1 units. Instead, the Agency attempts to resolve the issue in the final Boiler MACT by providing the new demonstration mechanism, which would purportedly allow facilities to demonstrate that their Gas 2 uni ts should be subject to the
standards for Gas 1 units:

. . . EPA is requiring a demonstration that other gases have levels of H 2 S and Hg that are no higher than those f ound in Gas 1 units. Natural gas purity is commonly defined c onsidering the sulfur cont ent of the gas, in the
form of H 2 S. Sweet natural gas, which is considered pipeline quality gas, contains no more than 4 ppmv H 2 S. Information on Hg levels typical of natural gas was available through lit erature, and domesti c natural gas Hg concentrations range up to about 40 mi crograms per cubic meter. Using
H 2 S and Hg concentration as paramet ers for establishing equivalent contamination levels to natural gas, EPA is providing a f uel specification that can be used by facilities to qualify Gas 2 units for the Gas 15 standards. The fuel specification would also allow facilities to perform precombustion gas cleanup in order to qualify Gas 2 units for the Gas 1 standards. Boilers using process gas es that do not meet the fuel specification and are not processed to meet the contaminant levels must
meet the emissions limits for Gas 2 units.

76 Fed. Reg. at 15,639.

EPA depicts this provision as a solution for Gas 2 units that cannot meet the
Boiler MACT’s emission limits for those s ources. Yet, EPA’s demonstration mechanism does not offer relief to those sources’ operat ors. Specifically, one of the AIF’s members tested available LFG streams, which yielded H 2 S emissions levels ranging from 6 to 34 ppmv. Even more, typical LFG streams fr om a limited sample group range from between 7 and 105 ppmv of H 2 S. These levels are well above the Boiler MACT’s limit of 4 ppmv H 2 S for those Gas 2 units seeking to obt ain regulation according to the Gas 1
emission levels.

2. EPA did not provide the public with adequate notice or an opportunity to comment on the demonstration mechanism.

The CAA incorporates the APA’s notice r equirements by reference and expressly requires EPA to provide notice of its proposed rule through a statement of its basis and purpose, including (a) the factual data on which the proposal is based, (b) the methodology used in obtaining and a nalyzing data, and (c) the major legal interpretations and policy considerations underlying the proposed ru le. 42 U.S.C. § 7607(d)(3); see also 5 U.S.C. § 553(b)(3), incorporat ed by reference in 42 U.S.C. § 7607(d)(3) (requiring notice of “eit her the terms or substance of the proposed rule or a description of the subjects and issues involved”). This notice is provided to give the public a meaningful opportunity to comment. 42 U.S.C. § 7607(d )(4), (5). “The significance of rulemaking c annot be underemphasized. It gives parties affected by a decision an opportunity to participate in t he decision-making process and forces EPA to
articulate the bases for its decisions.” Donner Hanna Coke Corp. v. Costle , 464 F. Supp. 1295, 1305 (W.D.N.Y. 1979) (citation omi tted). It also provides aggrieved parties the right to seek judicial review under the CAA. Id. (citing 42 U.S.C. § 7607(b)).

EPA wholly failed to provide notice and an opportunity to comment on the demonstration mechanism. EPA’s proposed rule made no mention of a provision that would allow Gas 2 units to qualify for regul atory treatment under the standards for Gas
1 units. See 75 Fed. Reg. 32,006. Neverthel ess, EPA contends that it has independently “determined that to the extent that proc ess gases are comparable to natural gas and refinery gas, combustion of t hose gases in boilers and process heaters should be subject to the same standards as combustion of natural gas and refinery gas.” 76 Fed. Reg. at 15,639.

EPA appears to suggest that it is “providing a mechanism by which units that combust gaseous fuels other than natural gas and refinery gas can demonstrate that6 they are similar to Gas 1 units and will ther efore be subject to the standards for Gas 1 units,” in response to public comments. Id.

But the Agency’s mere implication that the demonstration mechanism is being offered in response to public comments is not sufficient to satisfy the CAA’s notice and comment requirements. See McLouth Steel Products Corp. v. Thomas , 838 F.2d 1317, 1323 (D.C. Cir. 1988) (citing AFL-CIO v. Donovan , 757 F.2d 330, 339-40 (D.C. Cir. 1985) and Small Refiner Lead Phase- Down Task Force v. EPA , 705 F.2d 506, 549-50 (D.C. Cir. 1983)). On the ot her hand, a change to the fina l Boiler MACT in which EPA responded to public comments by recategorizi ng LFG boilers as Gas 1 units would have been a more logical outgrowth of EPA’s original proposal. EPA has violated the CAA’s notice and comment requirements. The Agency s hould, therefore, grant this petition for
reconsideration and treat LFG-fi red units as Gas 1 units as a categorical matter. Failing that, EPA must at least allow for public co mment on this new demonstration mechanism and its impact on the operator s of LFG-fired units.

3. The Boiler MACT creates disi ncentives for the use of LFG, which is contrary to the Ag ency’s policies regarding LFG.

The AIF urges EPA to consider how its new demonstration mechanism, which subjects LFG-fired units to unattainable criteria in order to qualify as Gas 1 sources, will
create disincentives for the beneficial use of LFG. Indeed, because LFG-fired units cannot satisfy the mechanism’s emission limits, landfills woul d simply have to return to flaring their excess LFG – wasting this f uel – rather than reducing their pollutant
emissions to the levels of boilers and other mo re efficient units. Fa cilities would also be compelled to use additional natu ral gas, or other fuels, includ ing coal. Both the flaring
of LFG and the increased use of fossil fuel s would generate additional criteria pollutant
emissions.

This outcome contravenes EPA’s stated policy of encouraging the beneficial use of LFG, which the Agency implements th rough its EPA Landfill Methane Outreach Program (“LMOP”). On its website fo r the LMOP, EPA stat es the following:

Municipal solid waste (MS W) landfills are the second-largest source of
human-related methane emissions in the United States, accounting for approximately 22 percent of these emissi ons in 2008. At the same time, methane emissions from landfills repres ent a lost opportunity to capture and use a significant energy resource. LFG is created as solid waste decomposes in a landfill.

EPA, Basic Information LMOP, http://www.epa. gov/lmop/basic-info/ index.html (last updated Apr. 22, 2011).

Thus, as EPA acknowledges, LFG-fired units reduce emissions both by providing alternatives to the flaring of LFG and to the use of fuels, such as coal, that increase overall criteria pollutant emissions. But EPA’s newly pr oposed demonstration
mechanism in the final Boiler MACT woul d instead encourage increased flaring of LFG7 and the use of natural gas and coal as alte rnatives to LFG. EPA can properly resolve this contradiction by recategorizing LFG-fire d units as Gas 1 units. Several members of
the AIF have invested in la ndfill-gas-to-energy projects t hat beneficially use LFG, such as at automobile assembly plant operations. EPA’s approach to LFG regulation in this final Rule sends a strong signal to companies like these that they should switch back to natural gas.

4. LFG-fired units should automa tically qualify for regulatory
treatment under the Gas 1 cate gory, as the demonstration mechanism sets arbitrary H 2 S and Hg standards that LFG-fired
units cannot achieve.

EPA’s demonstration mechanism in the fi nal Boiler MACT, which the Agency
contends would allow facilities to show t hat their LFG is equivalent to Gas 1 are unreasonable, arbitrary and capricious. In fac t, the provision’s emission limits – such as 40 mm/m3 mercury and 4 ppm hydrogen sulfid e – are actually more stringent than those for gaseous fuels automatically deemed to qualify for Gas 1 r egulatory treatment. Refinery gas, for instance, is covered under the Gas 1 category and is limited in some regulations to 162 ppmv of H 2 S. See 40 C.F.R. § 60.100, Subpa rts J and Ja (limiting the permissible H 2 S in gas burned in a flare to 162 pp m on a rolling 3 hour basis). EPA has offered no justification for subjecting LF G-fired units to more stringent limits than
those that would othe rwise be applicable to Gas 1 units. Instead of requiring LFG-fired units to proceed through a demonstration me chanism, which impos es emission limits not attainable by those sources, to qualif y for Gas 1 treatment, EPA should allow LFGfired units to automatically qualif y for Gas 1 regulatory treatment.

B. EPA inappropriately failed to exem pt boilers, especially those fired with natural gas, with heat input capacities up to 10 MMBTU/hr from the final work practice standard and imposed unnecessary bi-annual tune up requirements.

Pursuant to CAA section 112(h), EPA impos es a work practice standard for each boiler or process heater that has a heat in put capacity of less than 10 MMBTU/hr per
hour. See 76 Fed. Reg. at 15,613-14. Such fac ilities “must conduct a biennial tune-up of the boiler or process heater . . . to demonstrate continuous compliance.” Id. at 15,678 (40 C.F.R. § 63.7540(a)(11)). Such fac ilities must also subm it notifications to EPA or the governing state agency certifying t hat they are complying with the biennial tune-up requirements. Id. at 15,675 (40 C.F.R. § 63. 7530(d)), 15,679 (40 C.F.R. § 63.7545(e)(8)). EPA asserts that the work pr actice standard stems from the Agency’s
determination that numerical em ission standards for Gas 1 units are impracticable due to technological and economic limitations. Id. at 15,638.

Although EPA made the decision to use a work practice standard for such
sources in lieu of a numeric al standard, EPA should re consider the merits and disadvantages of imposing th e standard on boilers with heat input capacities of less
than 10 MMBTU/hr. Emissions fr om these sources are insignificant. EPA incorrectly
claims that it has no authority to:8 establish a de minimis exemption from emissions standards established under section 112, consistent with the language of section 112(d) and case law from the U.S. Court of Appea ls for the D.C. Circuit requiring EPA
to set emissions standards for all HAP emitted from a source. This requirement precludes EPA from establishing a de minimis threshold below which HAP emitted by a source would not be regulated. See Sierra
Club v. EPA , 479 F.3d 875, 883 (D.C. Cir. 2007) (“EPA has a ‘clear statutory obligation to set emission standards for each listed HAP,’ which does not allow it to ‘avoid setting st andards for HAPs not controlled with technology.’” quoting Nat’l Lime Ass’n v. EPA , 233 F.3d 625, 634 (D.C. Cir. 2000)); see also Natural Resources Defense Council v. EPA , 489 F.3d 1364, 1371 (D.C. Cir. 2007) (affirm ing that EPA must establish
emission standards for listed HAP emitte d from a category, citing Sierra Club and National Lime). 2

Nothing in the cited cases overruled Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir. 1979), which clearly estab lishes EPA’s authority to exempt de minimis
situations and create exem ptions based on administrative necessity.

EPA’s approach of requiring tune-ups fo r all units (save hot water heaters less than 120 U.S. gallons) is extremely burdensome and does not provide emission reduction benefits. For exampl e, at an automobile assembly plant, even the hot water
heaters for the showers that t he assembly workers use to clean up would be subject to the bi-annual tune-up requirement. The co st of meeting thes e requirements will be excessive and will not lead to any meaningful emission reductions. Indeed, this final Rule will actually create incent ives for facilities to switch from natural gas-fired water heaters to electric water heaters. The latter type is less efficient, because the electricity must first be generated (likely by combusting a fuel to heat steam to mechanically produce electricity) and then c onverted to heat for heating t he water – a very inefficient process from an energy standpoint. This is especially true if the electricity used to power the electric water heat ers may well be obtained fr om non-gaseous fuels, which emit more pollutants than natural gas water heater s. Facilities that retain their gas-fired water heaters will face a large recordkeeping burden to track the compliance requirements and to complete annual compliance certifications.

Thus, EPA should reconsider its decision not to exempt larger hot water heaters and boilers with heat input capa cities of less than 10 MMBTU/hr from this unfeasible and minimally beneficial bi ennial tune-up requirement.

2 Response to Comments, Vol 1., at 339.9 C. EPA’s requirement that facilities provide notification of alternative fuel use during natural gas curta ilment within 48 hours of the declaration of curtailment is inappr opriate and should be modified to comport with reporting deadlines under Title V.

In the final Boiler MACT, EPA imposes an additional obligation on operators of Gas 1 units during periods of natural gas cu rtailment or an interruption in supply.
Pursuant to the new 40 C.F.R. § 63.7545(f), these Gas 1 uni t operators must provide
notification of their use of an alternativ e, non-Gas 1 fuel “within 48 hours of the declaration of each period of natural gas curtailment or supply interruption, [during which the supply of natural gas to an affect ed facility is halted for reasons beyond the control of the facility].” 76 F ed. Reg. at 15,679, 15,685.

EPA has improperly dismiss ed commenters’ concerns r egarding the feasibility of imposing on facilities such a short timeframe for providing this notification. In its response to those comments, EPA contends “t hat curtailments are an unlikely event, so the burden of this requirement should be minimal.” EPA’s Responses to Public
Comments on EPA’s National Emission Standards for Haza rdous Air Pollutants for Major Source Industrial Commercial Instituti onal Boilers and Process Heaters, Vol. 2,
Document Control No: EP A-HQ-OAR-2002-0058-2894.1, Comment Excerpt No: 6 (Mar. 21, 2011). That such a situation requiri ng notice may occur infrequently does not change the fact that the burden of the requi rement will be significant during these periods.

The requirement is unnecessary given t hat backup fuels are al lowed by existing permits. Burning a backup fuel is not like bur ning a new fuel. At mo st, notification could be required only if the fuel used was not previously identifi ed in a permit. While in its Response to Comments, 3 EPA disagrees that this notice is unnecessary on the grounds that “[t]he notificatio n requirement will allow EPA to ensur e that only those units that qualify as Gas 1 units remain in the Gas 1 subcategory,” 4 that concern does not justify a
48-hour notification requirement. EPA can clearly achieve its stated goal by receiving any information regarding curtailments in Title V reports.

Accordingly, the 48-hour notification requirement shou ld be eliminated and, at most, a requirement to indicate if a natural gas curtailment occurred in the previous 6- month period should be inclu ded in the Title V semi-ann ual report of required monitoring. 5

D. The Energy Assessment Requi rement Should Be Eliminated.

EPA proposed a “beyond the floor” requi rement for a one-time energy
assessment in the Boiler MACT . This energy assessment requirement goes beyond not just the floor but also EPA’s authority unde r the CAA. EPA seeks to regulate sources

3 Response to Comments, Vol. 1, at 895.

4 Id.

5 40 C.F.R. 70.6(c).10 beyond those in the source category itself. The affected source here is the boiler or process heater, not the manuf acturing facility as a whole. Indeed, EPA’s final Rule actually regulates facilities that are in other source ca tegories and does so without regard to the prior determinations regarding appropriate MACT standards for them. The energy use system EPA is regul ating is defined at 40 C.F.R. § 63.7575 to include compressed air systems, machine drive (motors , pumps, fans), proce ss cooling, facility HVAC, building envelope, and lighting. Mo reover, the requirement to conduct the energy assessment does not reduce HAP emissi ons and, therefore, is not justified under Section 112. Accordingly, the requir ement should be elim inated or at least
curtailed to the affected source for this Rule and justified.

III. SUPPORT FOR STAY OF THE EFFECTIVE DATE

The AIF supports EPA’s decision to stay the effectiveness of the Boiler MACT
until the reconsideration process or litigation is complet ed. EPA has authority to stay the effective date of the applic ability of the aforementioned portions of the Boiler MACT to the affected units, as CAA section 307(d)(7)(B) allows the Administrator to stay the effectiveness of this final rule pending rec onsideration. 42 U.S.C. § 7607(d)(7)(B). Although the statute provi des for a three month stay pending reconsideration, id. , EPA has used its authority to grant a longer stay and should do so in this case to the extent necessary. In particular, EPA has authority to issue a longer stay under section 705 of the APA. When “justice so requires,” EPA may stay the effective date of a rule pending judicial review pursuant to section 705 the APA. 5 U.S.C. § 705. Petitions for review of
the Boiler MACT have been filed in the D.C. Circuit, and justice demands that a stay be granted pending review. EPA has used this author ity to “postpone” the effective date of
a CAA rule. See

, e.g. , Reconsideration of the Preventi on of Significant Deterioration (PSD) and Nonattainment New Source Revi ew (NSR): Aggregation, 75 Fed. Reg. 27,643 (May 18, 2010). EPA may also issue a stay without notice and comment based on the good cause exception under subparagraph (B) of subs ection 553(b) of Title 5 pursuant to section 307(d)(1), 42 U.S.C. § 7607(d)(1), and under 5 U.S.C. § 553(d)(3).

EPA has already conceded that it needs to reconsider the Boiler MACT. See 76 Fed. Reg. at 15,267. Accordingly, it makes little sense to impose substantial compliance costs on the regulated entities until EPA takes the time to reconsider all the appropriate issues. In requesting additional time to issue the Boiler MACT and related rules, EPA argued to the distri ct court that several months were needed to re-propose the rules. Re-proposal “would result in st andards that are more defensible and will yield environmental benefits earlier, because the final standards will more likely withstand substantive review.” EPA’s Mem. in Suppor t of Mot. to Amend Order of Mar. 31, 2006, at 20, Sierra Club v. Jackson , No. 1:01CV01537 (D.D.C Dec. 7, 2010) (Doc. 136). Although the district court denied the reques t, EPA also stated that “to ensure that the final rules are logical outgrowths of the proposals,” the Agency would have to repropose its rules in an altered form. Id. EPA, in fact, has already issued a notice that it intends to reconsider various aspects of t he final Boiler MACT, because “certain issues
of central relevance to these rules arose after the period for public comment or may have been impracticable to co mment upon.” 76 Fed. Reg. at 15,267. As described above, the issues identified her ein require reconsideration.11 Those LFG-fired units that may now be subject to EPA’s new demonstration mechanisms would be harmed if EPA’s new pr ovision remains unconsidered. Because those units cannot satisfy the mechanism’s emission limits, landfills would flare their excess LFG rather than exploit these gaseous fuels for a beneficial purpose.
Combustion can be controlled much more efficient ly in a boiler or process heater than in
a flare. Residence times at high temperatures within flares are significant ly decreased, which increases not only potential HAP emissi ons, but also criteria pollutant and other
emissions.

In addition, impacted facilities would be co mpelled to increase their use of natural gas or coal. Both the flaring of LFG and in creased use of fossil fuels to produce energy would also generate additional cr iteria pollutant emissions.

Therefore, merely granting reconsideratio n is not enough to prevent the adverse
effects of EPA’s action.

CONCLUSION

The AIF requests that EPA include the issu es listed above in its reconsideration process for the Boiler MACT. The AIF stands ready to work with EPA to resolve the
above issues offered for reconsideration. Please contact Shannon Broome at 510-985- 1710 with any questions regar ding this petition.CERTIFICATE OF SERVICE

A copy of the preceding was sent on May 20, 2011 to the following via facsimile, email,

and certified mail:

Lisa P. Jackson

Administrator U.S. Environmental Protection Agency Ariel Rios Building (AR), 1101A 1200 Pennsylvania Avenue, NW Washington, DC 20004 jackson.lisa@epa.gov

Fax No.: 202-501-1450

Gina McCarthy USEPA Headquarters Ariel Rios Building, 6101A 1200 Pennsylvania Avenue, NW Washington, DC 20460 mccarthy.gina@epa.gov

Fax No.: 202-501-0986

/s/ Matthew Raeburn

Matthew RaeburnMay 20, 2011

VIA FACSIMILE - ELECTRONIC MAIL -

CERTIFIED MAIL/RETURN RECEIPT REQUESTED

The Honorable Lisa P. Jackson The Honorable Gina McCarthy Administrator (M/C: 1101A) Assi stant Administrator (M/C: 6101A) U.S. Environmental Protection Agen cy Office of Air and Radiation 1200 Pennsylvania Avenue, N.W. U.S. Environmental Protection Agency Washington, D.C. 20460 1200 Pennsylvania Avenue, N.W. jackson.lisa@epa.gov Washington, D.C. 20460

Fax No: 202-501-1450 mccarthy.gina@epa.gov

Fax No: 202-501-0986

The Honorable Mathy Stanislaus Assistant Administrator (M/C: 5101T) Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 stanislaus.mathy@epa.gov

Fax No. 202-566-0207

Re: Auto Industry Forum Petition for Reconsideration and Administrative Stay

Ladies and Gentlemen:

The Auto Industry Forum (“AIF”) hereby submits the attached for the Environmental Protection Agency to reconsider and stay its Standards of Performance for New Stationary Sources an d Emission Guidelines for Existing

Sources: Commercial and Industrial Solid Wa ste Incineration Units; Final Rule

, published at 76 Fed. Reg. 15,704 (Mar. 21, 2011); and Standards of Performance for New Stationary Sources and Emission Guid elines for Existing Sources: Commercial

and Industrial Solid Waste Inci neration Units; Final Rule, published at 65 Fed. Reg. 75,338 (Dec. 1, 2000) (“CISWI”).

Please feel free to contact me at 510 -985-1710 with any questions regarding this petition.

Sincerely,

/s/ Shannon S. Broome

Shannon S. Broome Counsel to the Auto Industry Forum

AttachmentBEFORE THE ADMINISTRATOR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

) In re: Standards of Performance for ) New Stationary Sour ces and Emission ) Guidelines for Existing Sources: ) Docket ID. EPA–HQ–OAR–2003–0119 Commercial and Industrial Solid Waste ) Incineration Units; Final Rule, ) 76 Fed. Reg. 15,704 (Mar. 21, 2011). ) ) ) In re: Standards of Performance for ) New Stationary Sour ces and Emission ) Guidelines for Existing Sour ces: ) Docket ID. A-94-63 Commercial and Industrial Solid Waste ) Incineration Units; Final Rule, ) 65 Fed. Reg. 75,338 (Dec. 1, 2000). ) )

PETITION OF THE AUTO INDUSTRY FORUM FOR RECONSIDERATION
AND ADMINISTRATIVE STAY

Pursuant to section 307(d)(7)(B) of the Clean Air Act (“CAA”), 42 U.S.C. §7607(d)(7)(B), and section 705 of the Admini strative Procedure Act (“APA”), 5 U.S.C. §705, the Auto Industry Forum (“AIF”) hereby pet itions the Administ rator of the U.S. Environmental Protection Agenc y (“EPA” or “Agency”) to reconsider and stay portions of
EPA’s final rule entitled Standards of Perf ormance for New Stationary Sources and
Emission Guidelines for Exis ting Sources: Commercial and Industrial Solid Waste Incineration Units, publish ed at 76 Fed. Reg. 15,704 (Ma r. 21, 2011) (“CISWI Rule”). 1 The CISWI Rule imposes emission standards for hazardous air pollutants under section
129 for Commercial and Industrial Solid Wast e Incineration (“CISWI”) Units.

In particular, the AIF requests that:

(1) EPA clarify that recycled sand is not a solid waste and thermal sand reclamation (“TSR”) units are not consi dered solid waste incineration units

1 The CISWI Rule was published with a series of rules, including the final rule entitled National
Emission Standards for Hazardous Air Pollutants fo r Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters, 76 Fed. Re g. 15,608 (Mar. 21, 2011) (referred to as the “Boiler MACT Rule”) and the final rule entitled Identificat ion of Non-Hazardous Secondary Materials That Are Solid Waste, 76 Fed. Reg. 15,456 (Mar. 21, 2011) (r eferred to as the “NHSM Rule”). The NHSM Rule was issued to assist facilities in determining the a pplicability of the CISWI and Boiler MACT Rules with respect to non-hazardous secondary materials burned as fuels or used in combustion units.2 subject to the requirements in the CISWI Rule or otherwise issue an exemption from t he CISWI Rule for such units;

(2) EPA continue to stay the CISWI Rule issued March 21, 2011 for all units, but also, to the extent they are now interpreted to apply, stay the application of the ex isting CISWI requirements to TSR units;

(3) EPA adopt an exclusion for paint so lids collected from automobile assembly plants that are therma lly treated from the CISWI Rule;

(4) Consistent with a May 13, 2011, letter from Suz anne Rudzinski, Director
of EPA’s Office of Resource Cons ervation and Recovery, to Mr. Timothy Hunt, American Forest and Paper Asso ciation, EPA clarify and confirm in regulatory language that the CISWI Rule does not apply to the burning of gaseous materials – e.g., in fume incinerators which may include regenerative thermal oxider s and other control devices -- associated with coating operations.

The AIF is a coalition of automobile manufacturing co mpanies addressing issues under the CAA with particular e ffect on stationary sources in the automobile industry. Members of the AIF operate manufacturing plants that ar e subject to the rules promulgated by EPA, including at least two facilities us ing TSR units and one facility that is in the process of in stalling a TSR unit. Because t hese requirements are violative of the CAA, EPA has appropriately acted to stay the applicat ion of the CISWI Rule to
TSR units based on the re cycling of foundry sand.

I. THERMAL SAND RECLAMATION UNITS

A. Background

The CISWI Rule imposes emission standar ds for hazardous air pollutants under
section 129 for CISWI Units. 2 Section 129 of the CAA sp ecifically covers emissions from “solid waste incineration units,” r equiring the maximum achievable control technology (“MACT”) for such units. 42 U.S.C. §7429. The D.C. Circu it found that “any unit combusting any ‘solid waste’ at all must be regulated as a ‘solid waste incineration unit,’ regardless of the function of the comb ustion device.” 76 Fed. Reg. at 15,461.

2 A CISWI unit is defined as “any distinct operating unit of any commer cial or industrial facility that combusts, or has combusted in the preceding 6 months , any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials other than traditional fuels as defined in §241.2 that have been discarded, and you do not keep and produce records as required by §60.2175(v), the material
is a solid waste and the o perating unit is a CISWI unit. While no t all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or t he stack.” 76 Fed. Reg. at 15,762 (40 C.F.R. §60.2265); see also id. at 15,782 (40 C.F.R. §60.2875). Nothing in this petition should be considered to constitute a petition for reconsideration of the NHSM Rule.3 This section of the petition addresses t he application of the CISWI Rule to TSR units based on the recycling of foundry s and. During the core- and mold-making process used at foundries, s and is mixed with sm all quantities of re sin to construct cores and/or molds, which are used for the pouring and casting of molten aluminum, iron, and other metals. 3 Enormous volumes of this sand are used in this process. In
order to make construction of ne w cores and molds more economical, and to minimize the purchase of virgin sand an d the disposal of the sand , the sand is attritioned into
flowable sizes and is heated in a TSR unit to drive off the small amount (approximately 1% by weight) of resins left on the sand after it s initial use. For a sm all foundry, this can amount to over 25,000 tons of foundry sand (over 1270 truckloads or 23 rail cars per day annually) that can be reused in lieu of virgin sand and t hat is prevented from being disposed in solid waste landfills.

When the final NHSM Rule was published it included a section in the preamble that discusses, for the first time , EPA’s assertion that foundr y sand that is recycled onsite using a TSR unit and reused in the sa me process loop is considered “discarded” and is, therefore, a solid waste, making the TSR unit subject to section 129 CAA standards. 76 Fed. Reg. at 15, 519. This determination was the first instance in which EPA suggested that TSR units could become subject to the CISWI Rule and is contradictory with the CAA an d arbitrary. We theref ore request that the Agency
reconsider and revise it. U nder EPA’s line of reasoning in the NHSM Rule, a host of processes not previously contemplated by EPA could become regulated under the CISWI Rule. It also runs counter to the purposes of the CAA, 4 and EPA’s policy to promote reducing, reusing and recycling, see 74 Fed. Reg. 41, 46 (Jan. 2, 2009), as this new regulation will promote increased sand mining, the purchase of virgin sands for the casting industry, and require th e disposal of huge volumes of foundry sand, rather than its recycling and reuse.

Specifically, the AIF requests EPA to re consider its determi nation that foundry
sand used in TSR units are “s olid wastes” within the purview of the CISWI Rule and should not be provided an exemption. 5 Because EPA did not give the public notice of this requirement, the AIF requests EPA grant this petition for reconsideration to give the public an opportunity to comm ent as required by the CAA. Moreover, because these requirements are onerous and inva lid, EPA must immediately st ay the application of the CISWI Rule to TSR units that recycle foundry sand.

3 Multiple cores may be assembled into a mold so further discussion referring to the term “molds”
could include both cores and molds.

4 See 42 U.S.C. §7401(c) (“A primary goal of this ch apter is to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this chapter, for pollution prevention”).

5 While EPA did not make any determination with re spect to exemptions or exclusions for foundry sand recycled in TSR units, its issuance of the rule effectively acted as such a determination, of which we
seek reconsideration.4 B. Statutory Provisions Governing Reconsideration

Under CAA section 307(d)(7)(B), the Ad ministrator is required to convene a proceeding to reconsider a fina l rule upon a demonstration that it was impracticable to raise a particular objection to the rule duri ng the period for public comment (but within the time specified for judicial review), if the objection is of central relevance to the outcome of the rule. 42 U.S.C. §7607(d )(7)(B). Such is the case here.

EPA has already agreed to reconsider porti ons of the CISWI Rule. 76 Fed. Reg. 15,266 (Mar. 21, 2011). On the same date it issued the CISWI Rule, EPA issued a notice indicating that it “is in the proc ess of developing a proposed reconsideration
notice that identifies the specific elements of the rules for which we believe further public comment is appropriate and any provisi ons that we propose to modify after more fully evaluating the data and comments already received.” Id. at 15,267. EPA recognized that “certain issues of central re levance to these rules arose after the period for public comment or may have been impr acticable to comment upon,” and “that reconsideration is appropria te under section 307(d)(7)(B) of the Clean Air Act.” Id. One such issue is the determination, which first came to light at t he time of the final rule, that TSR units were being consid ered by EPA as CISWI units and that no exemption or exclusion for such units would be provid ed. Such a determinat ion was not properly subject to notice and comment and is inco nsistent with the CAA. Because EPA has gone beyond its authority, including failing to give the public notice and a meaningful opportunity to comment, it must initiate a reconsideration on t he issue of whether recycling of foundry sand through use of a TS R unit is subject to the CISWI Rule requirements.

C. Basis for Reconsideration of the Final Rule

1. EPA violated the procedur al requirements of the CAA.

EPA must reconsider the CISWI Rule because EPA violated the notice and comment requirements of the CAA. As such , it was “impracticable” to raise this objection to the rule during the period for public comment. 42 U.S.C. §7607(d)(7)(B).

The CAA incorporates the APA notice requirements by reference and expressly requires EPA to provide notice of its proposed rule through a statement of its basis and purpose, including (a) the factual data on which the proposal is based, (b) the methodology used in obtaining and a nalyzing data, and (c) the major legal interpretations and policy considerations underlying the propos ed rule. 42 U.S.C. §7607(d)(3); see also 5 U.S.C. §553(b)(3), in corporated by reference in 42 U.S.C. §7607(d)(3) (requiring notice of “either the terms or substance of t he proposed rule or a description of the subjects and issues invo lved”); 5 U.S.C. §553(c) (requiring agency to “give interested persons an opportunity to participate in the rule making through
submission of written dat a, views, or arguments ...”). Such notice is to give the public a meaningful opportunity to comment. 42 U.S.C. §7607(d)(4), (5). “The significance of rulemaking cannot be underemphasized. It gi ves parties affected by a decision an5 opportunity to participate in the decision-maki ng process and forces EPA to articulate
the bases for its decisions.” Donner Hanna Coke Corp. v. Costle , 464 F. Supp. 1295, 1305 (W.D.N.Y. 1979) (citation omitted); see also Kennecott Corp. v. EPA , 684 F.2d 1007, 1019 (D.C. Cir. 1982) (findi ng “[t]hat EPA allowed petiti ons for reconsideration is not an adequate substitute for an opportunity for notice and comment prior to promulgation”) (citation omitted). EPA failed to provide adequat e notice and opportunity
for comment in this case.

In this case, EPA prov ided an advanced notice of proposed rulemaking (“ANPRM”) and a proposed rulemaking. In t he ANPRM, EPA indicated it was issuing the ANPRM as part of its rulemaking under section 129:

We are issuing this ANPRM to assist the Agency in developing certain standards under sections 112 and 129 of the Clean Air Act (CAA). The meaning of “solid waste” as defined under [the Resource Co nservation and Recovery Act (“RCRA”)] is of particular impor tance since CAA section 129
states that the term “solid waste” shall have the meaning “established by the Administra tor pursuant to [RCRA].”

74 Fed. Reg. at 41. EPA’s references to foundry sand in the ANPR touted the benefits of its being recycled, not ing “[w]e believe that it is crit ical to interpret which secondary materials are not ‘solid wastes’ pursuant to RCRA to ensure the continued legitimate use of secondary materials in combustion processes.” Id. at 46. In the accompanying document that provided a materials charac terization of foundry sand, EPA did not address TSR units that are used to recycle f oundry sand on-site, rather than ship such sand for disposal. See Materials Characterization Paper, Foundry Sand - Used as ingredient in clinker manufacture (Dec . 16, 2008) (EPA-HQ-R CRA-2008-0329-0248). EPA’s proposed NHSM Rule utilized a simila r characterization of foundry sand. See Materials Characterization Paper, Foundry S and (Mar. 18, 2010) (used as ingredient in clinker manufacture) (EPA-HQ-RCRA-2008- 0329-0461.9). EPA did not address TSR units that are used to recycle foundry sand on-site. In the proposed NHSM Rule, EPA stated that “this proposal is limited to those situati ons where the non-hazardous secondary material is used as a fuel or i ngredient in a combustion process, [and] examples of using foundry sand in other applications is not directly relevant .” 75 Fed. Reg. 31,844, 31,869 (June 4, 2010) (emphasis added).

In the final NHSM Rule, however, EPA asserted, for the first time, its
determination that “the thermal processing of sand” would be burning of solid waste in a
“combustion unit.” 6 76 Fed. Reg. at 15,506. Like the ANPRM and the proposed rule,
the final NHSM Rule included a materials c haracterization related to foundry sand used in manufacture. But, unlike the prior ma terials characterization documents, the

6 EPA references a letter from March 28, 2001 regarding the co ntinuous sand loop for moldmaking. 76 Fed. Reg. at 15,505. This letter refe rences recycling of foundry sand through thermal processing, and EPA, thus, was awar e of the thermal processing at t he time of the proposed rule. 76 Fed. Reg. at 15,505.6 materials characterization provided with the final NHSM Rule included a reference to the recycling of foundry sand in TSR units, stating:

Foundry sand can also be proc essed onsite in a thermal reclamation unit before being returned to the system for
reuse in mold and core maki ng as part of the foundry’s continuous industrial production pr ocess. The high costs of transporting sand offsite ma ke thermal reclamation economically viable only if per formed onsite for reuse within the foundry. (Call, 2010).

Materials Characterization Paper: Foundr y Sand (used as ingredient in clinker manufacture), at 4 (Feb. 3, 2011) ( EPA-HQ-RCRA-2008-0329-1817). EPA was aware
that TSRs are used for recycling foundry sand, but had not determined such recycled foundry sand to be “discarded” and never cl assified foundry sand as a solid waste
before. EPA did not discuss TSRs in either the ANPRM or the NPRM for the NHSM rulemaking or the CISWI Rule.

Although EPA admits that the reuse of foundr y sand in metal-ca sting operations is “a type of beneficial use t hat is routinely employed by foundries,” the final NHSM Rule

states:

It appears that the purpose of ‘pro cessing’ foundry sand in a
thermal reclamation unit is to destroy or dispose of the
contaminants so that the foundr y sand can be re-used. As such, the burning of foundry sand in a th ermal reclamation unit is burning for discard and, thus, would be considered a
solid waste if combusted in such a unit, which would be subject to section 129 CAA standards

.

76 Fed. Reg. at 15,519 (emphasis added). The final NHSM Rule was published the same day as that for the CISWI Rule, and, therefore, there was no opportunity for the public to comment on whethe r the CISW Rule should, even if one assumed the
classification under the NHSM Rule was proper (which it is not), should create an exemption or exclusion for foundry sand recycling in TSR un its. As such, EPA must reconsider this finding.

This is a new determination subjecting TSR units to new requirements under the CISWI Rule without the requisi te notice and opportunity for public comment. The D.C. Circuit has recognized that:

[The APA’s n]otice requirement s are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop7 evidence in the record to suppor t their objections to the rule and thereby enhance the quality of judicial review.

Envtl. Integrity Project v. EPA , 425 F.3d 992, 996 (D.C . Cir. 2005) (quoting Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin. , 407 F.3d 1250, 1259 (D.C. Cir. 2005)). EPA’s mere assertion regarding the “appear [ance]” of the use of TSR units, with no support, 7 illustrates the need for public comment as described by the Court -- to provide the public with an opportunity to present ev idence to the agency prior to regulation. Moreover, t he mere fact that certain co mments it received may have referenced TSR units does not gi ve EPA license to ignore it s obligations to provide a meaningful opportunity for the public to comment. See McLouth Steel Products Corp. v.
Thomas , 838 F.2d 1317, 1323 (D.C. Cir. 1988) (citing AFL-CIO v. Donovan , 757 F.2d 330, 339-40 (D.C. Cir. 1985) and Small Refiner Lead Phase-Down Task Force , 705 F.2d at 549-50).

Because EPA made this determination for the first time at the time the final CISWI Rule was issued (and, in fact, appears to have moved 180 degrees from the position articulated at the time of the proposed rule), it was impracticable for the public to comment on this finding.

2. EPA’s new determination rai ses significant issues because it
violates the CAA.

Because EPA’s conclusions regarding TS R units are inconsistent with the law and arbitrary, the issues raised by the AIF herein are of c entral relevance to the CISWI
Rules. The CISWI Rule was never intended to cover the type of process involved in using TSR units.

First and foremost, the sand in question is not discarded or spent but is a useful product, and, therefore, cannot be solid waste. Second, the sand placed in a TSR unit is not combusted. Thus, the application of section 129 of the CAA to TSR units is of questionable legal authority.

7 These unsupported conclusions are also insuffici ent to meet the requirements to explain the basis of EPA’s regulations. There simply is inadequate support for its determ ination regarding foundry sand in TSR units being considered a “waste,” while other recognized beneficial uses are not. See Ne. Md. Waste Disposal Auth. v. EPA , 358 F.3d 936, 948 (D.C. Cir. 2004) (“[A]s we held in Appalachian Power Co. v. EPA, [135 F.3d 791, 818 (D.C. Cir. 1998)] the EPA at all times ‘retains a duty to examine key assumptions as part of its affirmative burden of promulgating and explaining a nonarbitrary, noncapricious rule,’ and therefore must justify its bas ic ‘assumption[s] even if no one objects ... during the comment period.’”) (omission and second alteration in original); Small Refiner Lead Phase-Down Task
Force v. EPA , 705 F.2d 506, 521 (D.C. Ci r. 1983) (finding EPA can not “ignore the procedural requirements of §307(d),” even if the agency “gives a decent reason for doing so.”); Weyerhaeuser Co. v.
Costle , 590 F.2d 1011, 1028 (D.C. Cir. 1978) (Court will defer to agency “so long as we are assured that its promulgation process as a whole and in each of its major aspects provides a degree of public awareness, understanding, and participation commensura te with the complexity and intrusiveness of the resulting regulations.”) (citations omitted).8 a. The sand in question is not discarded but is a useful product.

Section 129 specifically cove rs emissions from “solid waste incineration units.” 42 U.S.C. §7429. As EPA noted, the D.C. Circuit found t hat “any unit combusting any ‘solid waste’ at all must be regulated as a ‘s olid waste incineration unit,’ regardless of
the function of the combustion device.” 76 Fed. Reg. at 15,461. Solid waste under section 129 “shall have the meanin[g] est ablished by the Administrator pursuant to [RCRA].” 42 U.S.C. §7429(g)(6). RCRA, how ever, regulates materials that are“discarded.” 42 U.S.C. §6903(27). Foundry sand processed and reused in metalcasting is not discarded or spent and, therefore, not a solid waste.

RCRA regulates the management of solid waste and gives EPA the authority to control generation, transporta tion, treatment, storage, and disposal of solid and
hazardous wastes. RCRA defines “solid waste” as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and
other discarded material . . ..” 42 U.S.C. §6903( 27) (emphasis added). In the NHSM Rule, EPA established standards and proc edures to determine whether non-hazardous secondary materials are solid wastes under RCRA when used as fuels or ingredients in combustion units. 76 Fed. Reg. at 15,456. The NHSM Rule defines “solid waste” as defined in 40 C.F.R. §258.2, which mi rrors the definition in RCRA. Id. at 15,550 (40 C.F.R. §241.2). Thus, the ke y to being solid waste is whet her or not the material is
“discarded.”

The D.C. Circuit has made clear that the plain language of RCRA gives authority only over materials that are disposed of, abandon ed, or thrown away, or in other words, EPA’s RCRA jurisdiction only ext ends to discarded materials. Am. Mining Cong. v.

EPA , 824 F.2d 1177, 1193 (D.C. Cir. 1987) (“We ar e constrained to conclude that, in light of the language and stru cture of RCRA, the problems animating Congress to enact it, and the relevant portions of the legi slative history, C ongress clearly and unambiguously expressed its intent that ‘so lid waste’ (and theref ore EPA’s regulatory authority) be limited to materi als that are ‘discarded’ by virtue of being disposed of, abandoned, or thrown away. While we do not lightly overturn an agency’s reading of its
own statute, we are persuaded that by regulating in-pro cess secondary materials, EPA
has acted in contravention of Congress’ intent.”); Ass’n of Battery Recyclers v. EPA

, 208 F.3d 1047, 1051-52 (D.C. Cir. 2000) (affirming that materials that are reused within an ongoing industrial process are neither disposed of nor abandoned). In response to these cases, EPA recognized that the foundry s ands used in “the process of separating bits and pieces of metal, fines, core sand butts, and other clumps of mold sand at the
shakeout table and screen to create return sand for reuse in the sand loop . . . are not
solid wastes.” Letter from EPA to Am. Foundry Soc’y, Mar. 28, 2001 (EPA-HQ-RCRA2008-0329-1738). 8 Although EPA also indica ted that it was not ad dressing the status of any thermal processing of sand, the same rationale applies.

8 EPA indicated, in its revisions to the definition of solid waste addressing re cycling activities, that the reuse of foundry sand is legitimate recycling (i .e., not discarded). 73 Fed. Reg. 64,668, 64,701 (Oct. 30, 2008) (“The use and reuse of foundry sands for mo ld making in a facility’s sand loop under normal9 While the type and quality of sand used for foundry core- and mold-making varies, it is a useful product. Certain types of processes use very specific types of sand such as mullite. Mullite, for example, is very expensive compared to lake or inland sands and is a valuable product. The foundry s and recycled in the TSR units is virtually identical to (and may even be better than) virg in sand purchased for use in core- and mold-making except for a small quantity of core resin. It makes no economic or
environmental sense to discard this useful and costly product at this early stage in its lifecycle. Thus, the small amou nt of resin is separated from the sand in the TSR unit for reuse again in the foundry core - and mold-making processes.

EPA apparently is now contending, however, that because the small amount of
resin is combusted in the process of recyc ling and reusing the sand, it is being discarded and thus the TSR proc essing of the foundry sand with the small amount of resin is a waste for purposes of the CISWI Rule. But, this separation is essentially no different than the separating out of contam inants on the shakeout table. Moreover, section 129(g)(1) does not refer to “any solid waste” but refers to the combustion of “any
solid waste material. ” 42 U.S.C. §7429(g)(1) (emphasis added). The “material” at issue here is the reusable foundry sand from the co res and molds, not the remaining resin. Only about 1% by weight of resins in t he foundry sand is combusted. EPA provides no support for parsing out the resin to define the whole material as solid waste and render
the TSR unit a “solid waste in cineration unit.” Thus, the mere fact that the resin is
burned off does not render the fo undry sand -- the material at issue -- a “waste” subject to section 129 requirements. 9

In addition, EPA provides no explanation as to the emissions associated with the burning of the resin, and, thus, provides no analysis of the appropriate emissions
standards under section 129. EPA also provides no analysis of the impacts of the CISWI Rule on TSR units, including the potent ial to increase the disposal of foundry
sand to avoid the increased costs associ ated with complying wit h the CISWI Rule.

b. The sand is not combusted.

The D.C. Circuit also m ade clear that section 129 defines a solid waste
incineration unit as one that “c ombusts” solid waste material. Natural Res. Def. Council

v. EPA , 489 F.3d 1250, 1257-58 (D.C . Cir. 2007). The definition of “CISWI” is “any distinct operating unit of any comme rcial or industrial facility that combusts . . . any solid
waste as that term is defined in 40 CFR Part 241. ” 76 Fed. Reg. at 15,762 (40 C.F.R. §60.2265) (emphasis added). Secti on 129 does not refer to “treatment” or even “use” of

industry practices has been found to be legitimate becau se the sand is part of an industrial process where there is little chance of the hazardous constituents being released into the environment or causing damage to human health and the environment when it is kept inside, because there is lead throughout the foundry's process, and because there is a clear value to reusing the sand.”).

9 Moreover, under RCRA, EPA also has found certai n recycled material, even where hazardous, is not solid waste. 40 C.F.R. §261.2. Although EPA indicates it is reconsidering portions of this definition, it also recognized that the principal reasoning behind excluding recycled hazardous materials from the
definition of solid waste “is that use/reuse or re cycling of such secondary materials often closely resembles normal industrial production, rather t han waste management.” 76 Fed. Reg. at 15,463.10 solid waste material. The process at iss ue here is a recycling process to reuse the foundry sand, not for disposal purposes through combustion.

The foundry sand here is not “combust ed” as contemplated by the EPA’s regulations. In 40 C.F.R. §240.101(c), Guideli nes for the Thermal Processing of Solid Waste, the term “combustibles” is defined as “...materials that can be ignited at a specific temperature in the presence of air to release heat energy.” Similarly, the dictionary definition of combustion includes “an act or inst ance of burning”; “a usually rapid chemical process (as oxidation) that produces heat and usually light.” Merriam Webster Online Dictionary, www.m-w.com (last visited May 17, 2011). In TSR units, the foundry sand is heated but is not ignited. There is no phase change or alteration in its physical structure. The sand is not oxidiz ed or melted, and there are no direct products
of combustion from the sand.

3. If the TSR units are consider ed to be combusting solid waste based on the resin alone, then thei r inclusion in the CISWI rule
should be deferred.

Because EPA found that addi tional information is needed with respect to certain categories of “combustion units,” it determined that the CISWI Rule would not subject, among other units, burn-off ovens and soil treat ment units to regulation at this time. 76 Fed. Reg. at 15,734. For similar reas ons, EPA should have deferred consideration of TSR units under the CISWI Rule, rather than, without notice and comment, make a
determination that TSR units are solid waste incineration units for purposes of CAA
section 129.

a. TSR units were not contempl ated to be regulated under
CISWI.

The CISWI Rule was part of EPA’s effort to address the vacatur of the CISWI Definitions Rule (70 Fed. R eg. 55,568 (Sept. 22, 2005)) by t he D.C. Circuit. 75 Fed. Reg. 31,938, 31,938 (June 4, 20 10). In the CISWI Definiti ons Rule, EPA had defined
the term “commercial or industrial solid wa ste incineration unit” to mean a combustion
unit that combusts “commercial or industr ial waste,” which EPA defined to mean waste
combusted at a unit that does not recover thermal energy from the combustion for a useful purpose. Id. at 31,940. The D.C. Circuit vacat ed the definition, holding that the
term “solid waste incineration unit” in CAA section 129(g)(1) “unambiguously include[s] among the incineration units subject to its standards any facility that combusts any
commercial or industrial solid waste material at all subject to the four statutory exceptions identified [in CAA Section 129(g)(1)].” Natural Res. Def. Council , 489 F.3d at 1257-58. But, EPA’s new methodology for defining solid wastes under the NHSM Rule has potentially swept a host of seem ingly unintended industr ial processes under
the CISWI Rule.

TSR units have never been contemplated as being CISWI units, and there is minimal thermal recovery exce pt for a simple recuperator used to preheat combustion
air within the same unit. Th e purpose is neither to “combust” the sand, nor to reduce11 the volume of the sand, nor to generate heat for reuse. The purpose is simply to reuse the sand in the making of new sand cores and molds. EPA never intended to include these types of processes in either the Boiler MACT or the CISWI Rule. In fact the new suite of March 21, 2011 rules would not ha ve been considered applicable to TSR units except for the short discussion on foundry sand in the preamble of the NHSM Rule.

b. TSR units are similar to burn-off ovens and soil treatment units, and are not incinerators.

Even if EPA could determine that the bur ning off of the sma ll amount of core
resin constitutes combustion of solid waste to render TSR units “so lid waste incineration units” (which it cannot), they are more akin to burn-off ovens and so il treatment units for which EPA declined to regulate under the CISWI Rule at this time. EPA should provide
the same consideration here.

A “burn-off oven” is “any rack reclamat ion unit, part reclamation unit, or drum reclamation unit.” 76 Fed. Reg. at 15, 761 (40 C.F.R. §60.2265). A “rack reclamation
unit” means “a unit that burns the coatings off part racks used to hold small items for application of a coating. The unit burns t he coating overspray off the rack so the rack can be reused.” 40 C.F.R. §60.2265. Burn -off ovens then are basically a metal cleaning process that may the rmally remove all types of matter off of metal parts or electric motor armatures. A “[s]oil treat ment unit means a unit that thermally treats petroleum contaminated soils for the sole purpos e of site remediation.” 76 Fed. Reg. at 15,763 (40 C.F.R. §60.2265). Soil treatment units thermally treat contaminated soils to
eliminate contaminants that can pollute groundwater or harm human health and the environment via ingestion. In both cases, EPA ’s definitions of thes e units specifically
find that these units are not incinerators.

Similarly, TSR units, at most, therma lly treat foundry sand to remove the remaining small amount of core resin. The core resin may be burned off, but it is solely for the purpose of reusing the sand. TSR unit s are not incinerators. In the CISWI Rule,
an incinerator is defined as “... any furnace used in the process of combusting solid

waste . . . for the purpose of reducing the volume of the waste by removing combustible

matter .” 76 Fed. Reg. at 15,762 (40 C.F.R. §60.2265) (e mphasis added). Assuming the foundry sand is “solid waste,” which it is not, TSR units are not used “for the purpose of reducing the volume of the waste.” The vast ma jority by weight of the foundry sand remains in its orig inal form, or better than initially purchased, and, most importantly, is reused, rather than disposed. The small volu me reduction from the core resin removal is primarily due to the removal of the core resin that coats and is present in the interstitial space and is therefore negligible.

c. For the same reasons EPA deferred inclusion of burn-off ovens and soil-treatment units in the CISWI Rule, EPA
should have excluded TSR units.

In the CISWI Rule, EPA recognized that burn-off ovens or soil-treatment units should not be subject to the CISWI Rule. 76 Fed. Reg. at 15,734. EPA created12 exceptions to burn-off ovens an d soil treatment units to fu rther consider regulation for several reasons: (i) they play a vital ro le in the reclaiming and recycling process, (2) there were significantly more units than EPA was aware of, and (iii) EPA did not have data on all CAA section 129 pollu tants needed to set emissions limits. 10

To the extent EPA consider ed TSR units to be “combus tion” units, they should
have been considered similar to burn-off ovens and soil treatment units. TSR units are similar to these types of units in that they significantly reduce landfilling through reuse. EPA recognized the benefits of r eusing foundry sand in its analysis of the reuse of foundry sand as an “ingredient.” 74 Fed. Reg. at 46.

In addition, as it did with burn-off ovens , EPA will be implicating a significant number of units by its determi nation in the preamble, warrant ing further consideration. This number will be significantly higher than EPA’s estimate of 88 entities subject to the CISWI Rule in total. 76 Fed. Reg. at 15, 747. Moreover, EPA does not have and did not properly seek data from TSR units on all CAA section 129 pollutants needed to set
emissions limits.

EPA has found significant ec onomic impacts as a resu lt of these rules. It estimated only one new incinerator and no new energy recovery or waste-burning kiln
units will be constructed as a result of the CISWI Rule. 76 Fed. Reg. at 15,742-15,743.
EPA also noted that almost 97% of the CISWI units that we re considered would shut
down. Id. at 15,729 (“Based on the analysis, we expect that all but three facilities with units in the incinerators subcategory will choo se to cease operations once the proposed MACT floor limits are promulgated.”). TSR un its will likely suffer the same fate, but rather than look for alternative disposal methods (as EPA assumes for these other, actual waste disposal units), it will result in the loss of a substantial economic incentive to reuse materials, resulting in more mate rials being disposed of, more depletion of valuable natural resources, and more potent ial environmental harms. This result is directly contrary to EPA’s RCRA intent. In addition, because the business case for constructing foundries or expanding existing foundry operations is based on economics that include the use of TSRs, it is likely th at many existing foundries may close and new
ones will be sited elsewher e outside the United States.

10 EPA also noted it was not required to include such units to comply with their section 112(c)(6) obligations to identify categories of sources of pollu tants to assure that sources accounting for not less than 90 percent of the aggregate emi ssions of each such pollutant are subject to CAA section 112 standards. 76 Fed. Reg. at 15,708, 15,734. To the extent section 112(c)(6) is relevant, the same rationale applies to TSR units.13 d. Although EPA should defer or stay the application of these rules to TSR units, at a minimum, EPA should clarify that a TSR unit is not “new” until the date that EPA actually proposes coverage of such units under the
CISWI Rule.

In the final CISWI Rule, 40 C.F.R. §60.2015 def ines “new” CISWI units as those that “commenced construction after May 20, 2011.” 76 Fed. Reg. at 15,750. The proposed rule, however, defined “new” units as those commencing construction after June 4, 2010. 75 Fed. Reg. at 31,974 (40 C. F.R. §60.2015). EPA does not explain this change in date, and the confusi on created is further evidence that EPA must reconsider the application of the CI SWI Rule generally.

In addition, even the May 20, 2011 date shoul d not be used to establish when a
TSR unit is “new” under the CISWI Rule because EPA never in fact proposed to include TSR units under CISWI. CAA section 129(g)(2) defines a “new solid waste incineration
unit” as such a unit “the construction of which is commenced after the Administrator proposes requirements under this section es tablishing emissions standards or other requirements which would be applic able to such unit .” 42 U.S.C. §7429(g)(2) (emphasis added). While EPA proposed t he CISWI Rule on June 4, 2010, that proposal did not include TSR units recycling foundry sand. Indeed, as explained above,
EPA did not include the number of TSR units that exist in its analysis of the impacts of the proposed rule and EPA’s companion NHSM proposal did not indicate that the Agency contemplated including TSR units in CISWI Rule covered (and in fact suggested the opposite). Thus, EPA has not yet proposed emissions standards or other requirements “which wo uld be applicable to [TSR un its].” Therefore, the applicable date for “new unit” applicability, even if foundry sand TSR units could be considered a CISWI, would be the date that EPA actually proposes to include such units
under the Rule.

D. Support for a Stay of the Effect ive Date of the CISWI Rule and Request for Stay of the Pre-Ex isting CISWI Requirements to Foundry
Sand TSR Units.

1. EPA properly stayed the effect ive date of the 2011 CISWI Rule.

EPA has authority to stay the effective date of the app licability of the CISWI Rule to TSR units. CAA section 307(d)(7)(B) allows the Administrator to stay the effectiveness of the rule pend ing reconsideration. 42 U. S.C. §7607(d)(7)(B). Although the statute provides fo r a three month stay pending reconsideration, id. , EPA has used its authority to grant a longer st ay and should do so in this case to t he extent necessary. In particular, EPA has authority to issue a l onger stay under section 705 of the APA. When “justice so requires,” EPA may stay t he effective date of a rule pending judicial review pursuant to section 70 5 the APA. 5 U.S. C. §705. Petitions for review of the
CISWI Rule have been filed with the D.C. Circuit, and “justice” demands a stay be granted pending review. EPA has used this author ity to “postpone” the effective date of14 a CAA rule. See, e.g., Reconsideration of the Preventi on of Significant Deterioration (PSD) and Nonattainment New Source Revi ew (NSR): Aggregation, 75 Fed. Reg. 27,643 (May 18, 2010). EPA may also issue a stay without notice and comment based on the good cause exception under subparagraph (B) of subs ection 553(b) of Title 5 pursuant to section 307(d)(1), 42 U.S.C. §7607(d)(1), and under 5 U.S.C. §553(d)(3).

Indeed, EPA has admitted th at the CISWI Rule needs reconsideration, and, therefore, it makes little sense to impose substantial compliance costs on the regulated
entities until EPA takes the time to reconsider all the appropriate issues. In requesting
additional time to issue the CISWI Rule, EPA argued to the district court that several months were needed to re-propose the rule s because re-proposal “would result in
standards that are more defensible and wil l yield environmental benefits earlier, because the final standards will more likely withstand substantive review.” EPA’s Mem. in Support of Mot. to Amend Or der of Mar. 31, 2006, at 20, Sierra Club v. Jackson , No. 1:01CV01537 (D.D.C Dec. 7, 2010) (Doc. 136) . Although the district court denied the request, EPA also stated that “to ensure that the final rules ar e logical outgrowths of the proposals,” the Agency would have to re-p ropose its rules in altered form. Id. EPA, in fact, has already issued a notice that it intends to reconsider various aspects of the final CISWI Rule, because “certain issues of centra l relevance to these rules arose after the period for public comment or may have been impracticable to comment upon.” 76 Fed. Reg. at 15,267. As descr ibed above, the issues identified herein require
reconsideration.

The reconsideration of the CISWI Definiti on Rule required by t he D.C. Circuit was
not intended to address this process; the focus was on ma terials that had been sent to boilers, process heaters, or inci nerators for combustion. By interpreting the definition of solid waste in this limited example with resp ect to TSR units, EPA’s casual statements in the preamble to the NHSM Rule ma y inadvertently affect a wide range of manufacturing activities, foundries and other re lated processes not contemplated in the development of the CISWI Rule.

Those TSR units that may now be s ubject to the CISWI Rule, without any opportunity to comment, would be harmed if EPA’s passing determination remains unconsidered. In particular, members of t he AIF will be immediatel y affected by EPA’s regulation. One AIF member’s facility, for example, has plans for a new semipermanent mold technology that is expected to provide over 200 jobs. It will include a TSR unit for the recycling and reuse of sand used in the core- and mold-making process. It has received its air permit, and init ial operation is antic ipated in the near term. Because of the CISWI Rule, and the accompanying preamble statements in the NHSM Rule, this project and other rela ted foundry projects are at risk.

In addition, the public interest is benefi tted by the stay to ensure EPA is, as it purports to do, properly promoting reducti on of wastes through reuse and recycling. EPA’s actions here are premis ed on maximizing the usefulness of secondary materials, reducing or eliminating wast e, conserving energy, and reduc ing harmful emissions. The15 beneficial use of foundry sand would achieve these goals. As noted above, EPA has recognized that even recycling of foundry sand in a TSR unit is a beneficial use.

Merely granting reconsideration is not en ough to prevent the adverse effects of EPA’s action. A stay is necessary because there are new units that are about to be installed at operating facilities, and that will not be able to meet the standards based on the current designs. The companies t hat planned for and have purchased these units had no advanced notice that they might be cove red under the CISWI Rule and therefore their installation is now in jeopardy. Beyond these new units, the ex isting units currently in operation will experienc e immediate adverse effects because companies must begin to plan, design and budget now for compli ance with these rules. Because the application of the CISWI Rule to TSR units is not economic al, companies may elect to move foundry sand operations to jurisdicti ons and/or countries that recognize the benefits of recycling and do not impose these draconian r equirements on beneficial use
the sand.

2. To the extent the NHSM Rule has changed the regulatory landscape, EPA must also st ay any existing requirements applicable to CISWI units pendi ng reconsideration and judicial
review.

On May 18, 2011, EPA issued an administrat ive stay of the effective date for the CISWI Rule under the authority of the APA until the proceedings for judicial review of these rules are completed or the EPA comp letes its reconsideration of the rule,
whichever is earlier. 11 76 Fed. Reg. 28,662 (May 18, 20 11). While the Forum supports a stay of the CISWI Rule’s e ffective date, this does not obviate or address all of the
harms that the members of t he Forums currently face. EPA had not previously provided the public with notice that t he foundry sand or paint solids addressed in this request were subject to regulation under section 129 of the CAA. With this new determination, it is unclear whether parties using these materials are now subject to any existing requirements under section 129, including those promulgated at 65 Fed. Reg. 75,338 (Dec. 1, 2000). EPA’s delay of the effectiv e date of the CISWI Ru le does not address
the situation of materials that are now sudd enly defined as “solid wastes” without having provided notice and comment rulemaking.

For the same reasons supporting reconsid eration of the CISW I Rule, EPA must also reconsider its existing CISWI requirem ents to the extent E PA’s new determination with respect to recycled foundry sand in TS R units has now made these requirements applicable. If these requirem ents are now deemed applicable, EPA must also stay the existing requirements, which were promulgat ed in the final rule entitled “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources:
Commercial and Industrial Solid Waste Incineration Units; Fina l Rule,” published at 65 Fed. Reg. 75,338 (Dec. 1, 2000).

11 The administrative stay also addresses the fi nal rule titled “National Emission Standards for Hazardous Air Pollutants for Major Sources: Industri al, Commercial, and Institutional Boilers and Process Heaters,” 76 Fed. Reg. 15,608 (Mar. 21, 2011).16 II. TREATMENT OF PAINT SOLIDS

Commenters on the NHSM Rule requested that EPA clarify that paint solids collected from automobile assembly plant operations should be considered a NHSM
and not a solid waste subject to the CISWI requirements. 12 In the Response to Comments on the final NHSM Rule, the Agency stated that “paint chips” would be required to meet the legitima cy criteria in the NHSM Rule. 13 The AIF requests that EPA reconsider the coverage of the CISWI Rule to paint solids from automobile assembly operations because they provide a bene ficial use as a legitimate fuel and are not
hazardous. Paint solids are used in coal-fired boilers and managed just as coal would be. Moreover, state regulat ors have determined on the basis of test burns that combustion of paint solids is acceptable. Rather than pr omote energy recovery from these materials, the CISWI rule would incr ease the amount of paint solids diverted to
landfill as well as increase the use of fo ssil fuels that would be need to combusted instead of the paint solids

.

III. REQUEST FOR CLARIFICATION AND CODIFICATION OF CONTAINED GAS

TREATMENT

As noted above, with the publication of the CISWI Ru le, EPA issued its NHSM Rule, which purports to outline what secondary materials are considered “solid waste” for purposes of determining wh ether the CISWI Rule may app ly to units that combust
those materials. See, supra n.[2]. In its response to comments on the NHSM Rule requesting a definition of “contai ned gas” consistent with its prior interpretation under RCRA, EPA stated:

In the first place, we are unable to find any Agency reasoning supporting previous E PA interpretations that only gases in containers may be co nsidered “contained.” Based on the facts of this case, EPA cannot see how gaseous secondary material that is generated in any particular system and is somehow sent to a gas- fired boiler, even through a pipeline, can be considered an “uncontained gas.” This even assumes that “uncontained gas” is not covered under
the definition of so lid waste, which EPA does not concede in this rulemaking. This would mean that a clean gas-fired boiler could still burn under CAA 112 secondary material that is handled through a seriously l eaking pipeline, has little to no real fuel value, and is full of dirty contamination, simply because the material is not a “contained gas” under the definition of solid waste. EPA rejects any such formulation.

Response to Comments Document - NHSM Rule, at 213-214 (Feb. 2011). These statements regarding what constitutes “contained gas” raised questions as to whether

12 EPA-HQ-OAR-2006-0790 -1916.2 at 11-12.

13 NHSM Response to Comments at 211.17 EPA was revising its long-standi ng interpretation that gas in pipelines is not considered “contained gas,” and therefore not “solid wast e,” under RCRA. While the definition of
CISWI unit makes a distinction between the CISWI unit and the attached control device, the AIF requests clarificati on that emissions streams fr om numerous processes ducted
to control devices are not c onsidered solid waste making the air pollut ion control unit a CISWI unit. In particular, regenerative the rmal oxidizers (“RTOs”) used in coating operations are control units that combust captured VOC-l aden gas. EPA should clarify that control units, and related equipment, tr ansporting and burning captured gas are not covered by the CISWI Rule.

On May 13, 2011, EPA issued a lette r to the American Forest & Paper Association (see attachment) that stated:

This response does not change any previous EPA positions. We clarify here that the Agenc y’s previous statements and interpretations remain effectiv e. Thus, burning of gaseous material, such as in fume incinerators (as well as other combustion units, including air pollution control devices that may combust gaseous material) does not involve treatment or other management of solid waste (as defined in RCRA section 1004(27)).

EPA also acknowledged that, if it were to make any change to its long-standing interpretations, such change would have r equired public notice and comment. Based on this letter, the AIF underst ands that control units, and their associated equipment, such as RTOs used in coating operations , do not constitute CISWI units and the gaseous materials combusted therein are not “solid wastes” under RCRA. We request
confirmation from EPA and codifi cation of this interpretation. 14

CONCLUSION

The AIF requests that EPA include the issu es listed above in its reconsideration process for the CISWI Rule, continue its stay of the CISWI requirements, and stay the pre-existing CISWI Rule to the extent it w ould regulate foundry s and TSR units as well as consider paint solids collected from aut omobile assembly plant operations to be a
solid waste when combusted and subject to CISWI requirements

.

For the foregoing reasons, EPA must re consider the application of the CISWI Rule to TSR units, which has occurred solely as a result of some statements in the preamble to the NHSM Rule. The public wa s not given an opportunity to comment, and EPA’s unsupported determination is poised to s hut down all these uni ts and cancel new TSR projects, despite their recognized benefits for reducing wastes. To give EPA and the public adequate opportunity to comment, the AIF respectfully requests that EPA

14 To the extent this u nderstanding is not correct, EPA must initia te a reconsideration on this issue, as it changes EPA’s long- standing treatment of RTOs and impose s new requirements not contemplated by the CISWI Rule. EPA itself has recognized that it did not provide noti ce and comment on such a change in interpretation.18 immediately stay the CISWI Rule to the extent that they are interpreted to subject TSR units to the existing CISWI standards.

The AIF stands ready to work with EPA to resolve the above issues offered for
reconsideration. Please contact Shanno n Broome at 510-985-1710 with any questions regarding this petition.CERTIFICATE OF SERVICE

A copy of the preceding was sent on May 20, 2011 to the following via facsimile, email,

and certified mail:

Lisa P. Jackson

Administrator U.S. Environmental Protection Agency Ariel Rios Building (AR), 1101A 1200 Pennsylvania Avenue, NW Washington, DC 20004 jackson.lisa@epa.gov

Fax No.: 202-501-1450

Gina McCarthy USEPA Headquarters Ariel Rios Building, 6101A 1200 Pennsylvania Avenue, NW Washington, DC 20460 mccarthy.gina@epa.gov

Fax No.: 202-501-0986

Mathy Stanislaus USEPA Headquarters Ariel Rios Building, 6101A 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 stanislaus.mathy@epa.gov Fax No. (202) 566-0207

/s/ Matthew Raeburn

Matthew Raeburn